Thursday, September 29, 2011

My (late) representation to Parliament on the Video Camera Surveillance (Temporary Measures) BIll

The Chair
The Justice and Electoral Committee
Parliament Buildings
29 September 2011


Dear Chester and the members of the Justice and Electoral Committee

Firstly, I appreciate that the closing date for representations on this bill was yesterday. However given that the public was given just one day to lodge a view, I hope that you will consider receiving this brief late addition.

My views are as follows:

1. I totally oppose this bill as unnecessary, inimical to good policing and as offensive to justice and the rule of law.

2. I urge the committee to report it back to the House with a recommendation that it not proceed.


I sat on the Justice and Electoral Committee from 1999 until 2008. During that time the committee scrutinised the Evidence Bill (now Act). The very lengthy consideration the committee gave to section 30 (2) is what informs my view that this bill is simply not needed. As you well know subsection 2 (b) states that

“if the Judge finds that the evidence has been improperly obtained, (they must)
determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.”

It is simply not credible that the judiciary will let serious accusations go undetermined, given their obligation to give proper account of the need for an effective and credible system of justice. The fact that the Supreme Court decision that led to this bill allowed the improperly obtained evidence that was the focus of appeal, be admitted in the prosecution of 4 of the defendents demonstrates that there is no need to violate the doctrine of the seperation of powers by retrospectively legitimising police activity.


The Law Commission report into search and surveillance powers had put the police on notice that the legality of the use of covert filming was questionable. The fact that the police continued to rely so heavily on these techniques demonstrates an attitude to the law that is careless at best.

Retrospectively legitimising this activity holus bolus rewards such an attitude and makes a powerful statement to the police that they can be haphazard in following the law when it comes to gathering evidence. The only real sanction that exists to keep the police within the law, and in conformity with the intentions of Parliament when it enacts laws proscribing search and surveillance powers, is for improperly obtained evidence to be excluded in court. I find it hard to believe that the intention of this Parliament is to condone police impropriety.


It seems extraordinary that a country that purports to be a democracy that respects the separation of powers and the rule of law can contemplate passing retrospective validation of illegal police video surveillance, under urgency, with a select committee process lasting one week and with one day for the public to prepare representations. I do not think I need to spell out further to this committee why
this bill and this process is offensive to justice and the rule of law.


I offer thanks in advance in the hope that the committee has agreed to accept this late representation. I urge the committee to send this bill back to the House with a recommendation that it not proceed and with a report that spells out clearly why this bill is ill-conceived and offensive.

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